SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1371
_________________
TEXAS DEPARTMENT OF HOUSING AND COMMU-NITY
AFFAIRS, et al., PETITIONERS
v. THE IN-CLUSIVE
COMMUNITIES PROJECT, INC., et al.
on writ of certiorari to the united states
court of appeals for the fifth circuit
[June 25, 2015]
Justice Alito, with whom The Chief Justice,
Justice Scalia, and Justice Thomas join, dissenting.
No one wants to live in a rat’s nest. Yet in
Gallagher v.
Magner, 619 F. 3d 823 (2010), a
case that we agreed to review several Terms ago, the Eighth Circuit
held that the Fair Housing Act (or FHA), 42 U. S. C.
§3601
et seq., could be used to attack St. Paul, Minnesota’s
efforts to combat “rodent infestation” and other violations of the
city’s housing code. 619 F. 3d, at 830. The court agreed that
there was no basis to “infer discriminatory intent” on the part of
St. Paul.
Id., at 833. Even so, it concluded that the city’s
“aggressive enforcement of the Housing Code” was actionable because
making landlords respond to “rodent infestation, missing dead-bolt
locks, inadequate sanitation facilities, inadequate heat,
inoperable smoke detectors, broken or missing doors,” and the like
increased the price of rent.
Id., at 830, 835. Since
minorities were statistically more likely to fall into “the bottom
bracket for household ad-justed median family income,” they were
disproportionately affected by those rent increases,
i.e.,
there was a “dis-parate impact.”
Id., at 834. The upshot was
that even St. Paul’s good-faith attempt to ensure minimally
acceptable housing for its poorest residents could not ward off a
disparate-impact lawsuit.
Today, the Court embraces the same theory that
drove the decision in
Magner.[
1] This is a serious mistake. The Fair Housing Act does
not create disparate-impact liability, nor do this Court’s
precedents. And today’s decision will have unfortunate consequences
for local government, private enterprise, and those living in
poverty. Something has gone badly awry when a city can’t even make
slumlords kill rats without fear of a lawsuit. Because Congress did
not authorize any of this, I respectfully dissent.
I
Everyone agrees that the FHA punishes
intentional discrimination. Treating someone “less favorably than
others because of a protected trait” is “ ‘the most easily
understood type of discrimination.’ ”
Ricci v.
DeStefano, 557 U. S. 557, 577 (2009) (quoting
Teamsters v.
United States, 431 U. S. 324 ,
n. 15 (1977); some internal quotation marks omitted). Indeed,
this classic form of discrimination—called disparate treatment—is
the only one prohibited by the Constitution itself. See,
e.g.,
Arlington Heights v.
Metropolitan Housing Development
Corp., 429 U. S. 252 –265 (1977). It is obvious that
Congress intended the FHA to cover disparate treatment.
The question presented here, however, is whether
the FHA also punishes “practices that are not intended to
discriminate but in fact have a disproportionately adverse effect
on minorities.”
Ricci,
supra, at 577. The answer is
equally clear. The FHA does not authorize disparate-impact claims.
No such liability was created when the law was enacted in 1968. And
nothing has happened since then to change the law’s meaning.
A
I begin with the text. Section 804(a) of the
FHA makes it unlawful “[t]o refuse to sell or rent after the making
of a bona fide offer, or to refuse to negotiate for the sale or
rental of, or otherwise make unavailable or deny, a dwelling to any
person
because of race, color, religion, sex, familial
status, or national origin.” 42 U. S. C. §3604(a)
(emphasis added). Similarly, §805(a) prohibits any party “whose
business includes engaging in residential real estate-related
transactions” from “discriminat[ing] against any person in making
available such a transaction, or in the terms or conditions of such
a transaction,
because of race, color, religion, sex,
handicap, familial status, or national origin.” §3605(a) (emphasis
added).
In both sections, the key phrase is “because
of.” These provisions list covered actions (“refus[ing] to sell or
rent . . . a dwelling,” “refus[ing] to negotiate for the
sale or rental of . . . a dwelling,” “discriminat[ing]”
in a residential real estate transaction, etc.) and protected
characteristics (“race,” “religion,” etc.). The link between the
actions and the protected characteristics is “because of.”
What “because of” means is no mystery. Two Terms
ago, we held that “the ordinary meaning of ‘because of’ is ‘by
reason of’ or ‘on account of.’ ”
University of Tex.
Southwestern Medical Center v.
Nassar, 570 U. S.
___, ___ (2013) (slip op., at 9) (quoting
Gross v.
FBL
Financial Services, Inc., 557 U. S. 167, 176 (2009) ; some
internal quotation marks omitted). A person acts “because of”
something else, we explained, if that something else “ ‘was
the “reason” that the [person] decided to act.’ ” 570
U. S., at ___ (slip op., at 10).
Indeed, just weeks ago, the Court made this same
point in interpreting a provision of Title VII of the Civil Rights
Act of 1964, 42 U. S. C. §2000e–2(m), that makes it
unlawful for an employer to take a variety of adverse employment
actions (such as failing or refusing to hire a job applicant or
discharging an employee) “because of” religion. See
EEOC v.
Abercrombie & Fitch Stores, Inc., 575 U. S. ___,
___ (2015) (slip op., at 4). The Court wrote: “ ‘Because of’
in §2000e–2(a)(1) links the forbidden consideration to each of the
verbs preceding it.”
Ibid.
Nor is this understanding of “because of” an
arcane feature of legal usage. When English speakers say that
someone did something “because of” a factor, what they mean is that
the factor was a reason for what was done. For example, on the day
this case was argued, January 21, 2015, Westlaw and Lexis searches
reveal that the phrase “because of” appeared in 14 Washington Post
print articles. In every single one, the phrase linked an action
and a reason for the action.[
2]
Without torturing the English language, the
meaning of these provisions of the FHA cannot be denied. They make
it unlawful to engage in any of the covered actions “because
of”—meaning “by reason of” or “on account of,”
Nassar,
supra, at ___ (slip op., at 9)—race, religion, etc. Put another
way, “the terms [after] the ‘because of’ clauses in the FHA supply
the prohibited motivations for the intentional acts . . .
that the Act makes unlawful.”
American Ins. Assn. v.
Department of Housing and Urban Development, ___
F. Supp. 3d ___, ___, n. 20, 2014 WL 5802283, at *8,
n. 20 (DC 2014). Congress accordingly outlawed the covered
actions only when they are motivated by race or one of the other
protected characteristics.
It follows that the FHA does not authorize
disparate-impact suits. Under a statute like the FHA that prohibits
actions taken “because of” protected characteristics, intent makes
all the difference. Disparate impact, however, does not turn on
“ ‘subjective intent.’ ”
Raytheon Co. v.
Hernandez, 540 U. S. 44, 53 (2003) . Instead,
“ ‘treat[ing] [a] particular person less favorably than others
because of’ a protected trait” is “ ‘disparate
treatment,’ ”
not disparate impact. Ricci, 557
U. S., at 577 (emphasis added). See also,
e.g.,
Personnel Administrator of Mass. v.
Feeney, 442
U. S. 256, 279 (1979) (explaining the difference between
“because of” and “in spite of”);
Hernandez v.
New
York, 500 U. S. 352 –360 (1991) (plurality opinion)
(same);
Alexander v.
Sandoval, 532 U. S. 275,
278, 280 (2001) (holding that it is “beyond dispute” that banning
discrimination “ ‘on the ground of race’ ” “prohibits
only intentional discrimination”).
This is precisely how Congress used the phrase
“because of” elsewhere in the FHA. The FHA makes it a crime to
willfully “interfere with . . . any person because of his
race” (or other protected characteristic) who is engaging in a
variety of real-estate-related activities, such as “selling,
purchasing, [or] renting” a dwelling. 42 U. S. C.
§3631(a). No one thinks a defendant could be convicted of this
crime without proof that he acted “because of,”
i.e., on
account of or by reason of, one of the protected characteristics.
But the critical language in this section—“because of”—is identical
to the critical language in the sections at issue in this case.
“One ordinarily assumes” Congress means the same words in the same
statute to mean the same thing.
Utility Air Regulatory Group
v.
EPA, 573 U. S. ___, ___ (2014) (slip op., at 15).
There is no reason to doubt that ordinary assumption here.
Like the FHA, many other federal statutes use
the phrase “because of” to signify what that phrase means in
ordinary speech. For instance, the federal hate crime statute, 18
U. S. C. §249, authorizes enhanced sentences for
defendants convicted of committing certain crimes “because of”
race, color, religion, or other listed characteristics. Hate crimes
require bad intent—indeed, that is the whole point of these laws.
See,
e.g., Wisconsin v.
Mitchell, 508
U. S. 476 –485 (1993) (“[T]he same criminal conduct may be
more heavily punished if the victim is selected because of his race
or other protected status”). All of this confirms that “because of”
in the FHA should be read to mean what it says.
B
In an effort to find at least a sliver of
support for disparate-impact liability in the text of the FHA, the
principalrespondent, the Solicitor General, and the Court pounce on
the phrase “make unavailable.” Under §804(a), it is unlawful “[t]o
. . . make unavailable . . . a dwelling to any
person because of race, color, religion, sex, familial status, or
national origin.” 42 U. S. C. §3604(a). See also §3605(a)
(barring “discriminat[ion] against any person in making available
such a [housing] transaction . . . because of race,
color, religion, sex, handicap, familial status, or national
origin”). The Solicitor General argues that “[t]he plain meaning of
the phrase ‘make unavailable’ includes actions that
have the
result of making housing or transactions unavailable,
regardless of whether the actions were intended to have that
result.” Brief for United States as
Amicus Curiae 18
(emphasis added). This argument is not consistent with ordinary
English usage.
It is doubtful that the Solicitor General’s
argument accurately captures the “plain meaning” of the phrase
“make unavailable” even when that phrase is not linked to the
phrase “because of.” “[M]ake unavailable” must be viewed together
with the rest of the actions covered by §804(a), which applies when
a party “
refuse[s] to sell or rent” a dwelling,
“
refuse[s] to negotiate for the sale or rental” of a
dwelling, “
den[ies] a dwelling to any person,” “or otherwise
make[s] unavailable” a dwelling. §3604(a) (emphasis
added). When a statute contains a list like this, we “avoid
ascribing to one word a meaning so broad that it is inconsistent
with its accompanying words, thus giving ‘unintended breadth to the
Acts of Congress.’ ”
Gustafson v.
Alloyd Co.,
513 U. S. 561, 575 (1995) (quoting
Jarecki v.
G. D.
Searle & Co., 367 U. S. 303, 307 (1961) ). See also,
e.g., Yates v.
United States, 574 U. S.
___, ___ (2015) (plurality opinion) (slip op., at 14);
id.,
at ___ (Alito, J., concurring in judgment) (slip op., at 1). Here,
the phrases that precede “make unavailable” unmistakably describe
intentional deprivations of equal treatment, not merely
actions that happen to have a disparate effect. See
American
Ins. Assn., ___ F. Supp. 3d, at ___, 2014 WL 5802283, at
*8 (citing Webster’s Third New International Dictionary 603, 848,
1363, 1910 (1966)). Section 804(a), moreover, prefaces “make
unavailable” with “or otherwise,” thus creating a catchall.
Catchalls must be read “restrictively” to be “like” the listed
terms.
Washington State Dept. of Social and Health Servs. v.
Guardianship Estate of Keffeler, 537 U. S. 371 –385
(2003). The result of these ordinary rules of interpretation is
that even without “because of,” the phrase “make unavailable”
likely would require intentionality.
The FHA’s inclusion of “because of,” however,
removes any doubt. Sections 804(a) and 805(a) apply only when a
party makes a dwelling or transaction unavailable “because of” race
or another protected characteristic. In ordinary English usage,
when a person makes something unavailable “because of” some factor,
that factor must be a reason for the act.
Here is an example. Suppose that Congress
increases the minimum wage. Some economists believe that such
legislation reduces the number of jobs available for “unskilled
workers,” Fuller & Geide-Stevenson, Consensus Among Economists:
Revisited, 34 J. Econ. Educ. 369, 378 (2003), and minorities tend
to be disproportionately represented in this group, see,
e.g., Dept. of Commerce, Bureau of Census, Detailed Years of
School Completed by People 25 Years and Over by Sex, Age Groups,
Race and Hispanic Origin: 2014, online at
http://www.census.gov/hhes/socdemo/education/data/cps/2014/tables.html
(all Inter-net materials as visited June 23, 2015, and available in
Clerk of Court’s case file). Assuming for the sake of argument that
these economists are correct, would it be fair to say that Congress
made jobs unavailable to African-Americans or Latinos “because of”
their race or ethnicity?
A second example. Of the 32 college players
selected by National Football League (NFL) teams in the first round
of the 2015 draft, it appears that the overwhelming majority were
members of racial minorities. See Draft 2015,
http://www.nfl.com/draft/2015. See also Miller, Powerful Sports
Agents Representing Color, Los Angeles Sentinel, Feb. 6, 2014, p.
B3 (noting “there are 96 players (76 of whom are African-American)
chosen in the first rounds of the 2009, 2010, and 2011 NFL
drafts”). Teams presumably chose the players they think are most
likely to help them win games. Would anyone say the NFL teams made
draft slots unavailable to white players “because of” their
race?
A third example. During the present Court Term,
of the 21 attorneys from the Solicitor General’s Office who argued
cases in this Court, it appears that all but 5 (76%) were under the
age of 45. Would the Solicitor General say he made argument
opportunities unavailable to older attorneys “because of” their
age?
The text of the FHA simply cannot be twisted to
authorize disparate-impact claims. It is hard to imagine how
Congress could have more clearly stated that the FHA prohibits only
intentional discrimination than by forbidding acts done “because of
race, color, religion, sex, familial status, or national
origin.”
II
The circumstances in which the FHA was enacted
only confirm what the text says. In 1968, “the predominant focus of
antidiscrimination law was on intentional discrimination.”
Smith v.
City of Jackson, 544 U. S. 228, 258
(2005) (O’Connor, J., concurring in judgment). The very “concept of
disparate impact liability, by contrast, was quite novel.”
Ibid. (collecting citations). See also Tr. of Oral Arg. 15
(“Justice Ginsburg: . . . If we’re going to be realistic
about this, . . . in 1968, when the Fair Housing Act
passed, nobody knew anything about disparate impact”). It is
anachronistic to think that Congress authorized disparate-impact
claims in 1968 but packaged that striking innovation so
imperceptibly in the FHA’s text.
Eradicating intentional discrimination was and
is the FHA’s strategy for providing fair housing opportunities for
all. The Court recalls the country’s shameful history of
segregation and
de jure housing discrimination and then
jumps to the conclusion that the FHA authorized disparate-impact
claims as a method of combatting that evil.
Ante, at 5–7. But
the fact that the 1968 Congress sought to end housing
discrimination says nothing about the means it devised to achieve
that end. The FHA’s text plainly identifies the weapon Congress
chose—outlawing disparate treatment “because of race” or another
protected characteristic. 42 U. S. C. §§3604(a), 3605(a).
Accordingly, in any FHA claim, “[p]roof of discriminatory motive is
critical.”
Teamsters, 431 U. S., at 335,
n. 15.
III
Congress has done nothing since 1968 to change
the meaning of the FHA prohibitions at issue in this case. In 1968,
those prohibitions forbade certain housing practices if they were
done “because of” protected characteristics. Today, they still
forbid certain housing practices if done “because of” protected
characteristics. The meaning of the unaltered language adopted in
1968 has not evolved.
Rather than confronting the plain text of
§§804(a) and 805(a), the Solicitor General and the Court place
heavy reliance on certain amendments enacted in 1988, but those
amendments did not modify the meaning of the provisions now before
us. In the Fair Housing Amendments Act of 1988, 102Stat. 1619,
Congress expanded the list of protected characteristics. See 42
U. S. C. §§3604(a), (f )(1). Congress also gave the
Department of Housing and Urban Development (HUD) rulemaking
authority and the power to adjudicate certain housing claims. See
§§3612, 3614a. And, what is most relevant for present purposes,
Congress added three safe-harbor provisions, specifying that
“[n]othing in [the FHA]” prohibits (a) certain actions taken by
real property appraisers, (b) certain occupancy requirements, and
(c) the treatment of persons convicted of manufacturing or
distributing illegal drugs.[
3]
According to the Solicitor General and the
Court, these amendments show that the FHA authorizes
disparate-impact claims. Indeed, the Court says that they are “of
crucial importance.”
Ante, at 13. This “crucial” argument,
however, cannot stand.
A
The Solicitor General and the Court contend
that the 1988 Congress implicitly authorized disparate-impact
liability by adopting the amendments just noted while leaving the
operative provisions of the FHA untouched. Congress knew at that
time, they maintain, that the Courts of Appeals had held that the
FHA sanctionsdisparate-impact claims, but Congress failed to enact
bills that would have rejected that theory of liability. Based on
this, they submit that Congress silently ratified those decisions.
See
ante, at 13–14; Brief for United States as
Amicus
Curiae 23–24. This argument is deeply flawed.
Not the greatest of its defects is its
assessment of what Congress must have known about the judiciary’s
interpretation of the FHA. The Court writes that by 1988, “all nine
Courts of Appeals to have addressed the question had
concluded the Fair Housing Act encompassed disparate-impact
claims.”
Ante, at 13 (emphasis added). See also Brief for
United States as
Amicus Curiae 12. But
this Court had
not addressed that question. While we always give respectful
consideration to interpretations of statutes that garner wide
acceptance in other courts, this Court has “no warrant to ignore
clear statutory language on the ground that other courts have done
so,” even if they have “ ‘consistently’ ” done so for
“ ‘30 years.’ ”
Milner v.
Department of
Navy, 562 U. S. 562 –576 (2011). See also,
e.g.,
CSX Transp., Inc. v.
McBride, 564 U. S. ___, ___
(2011) (Roberts, C. J., dissenting) (slip op., at 11)
(explaining that this Court does not interpret statutes by asking
for “a show of hands” (citing
Buckhannon Board & Care Home,
Inc. v.
West Virginia Dept. of Health and Human
Resources, 532 U. S. 598 (2001) ;
McNally v.
United States, 483 U. S. 350 (1987) )).
In any event, there is no need to ponder whether
it would have been reasonable for the 1988 Congress, without
considering the clear meaning of §§804(a) and 805(a), to assume
that the decisions of the lower courts effectively settled the
matter. While the Court highlights the decisions of the Courts of
Appeals, it fails to mention something that is of at least equal
importance: The official view of the United States in 1988.
Shortly
before the 1988 amendments were
adopted, the United States formally argued in this Court that the
FHA prohibits only intentional discrimination. See Brief for United
States as
Amicus Curiae in
Huntington v.
Huntington Branch, NAACP, O. T. 1988, No. 87–1961, p. 15
(“An action taken because of some factor other than race,
i.e., financial means, even if it causes a discriminatory
effect, is not an example of the intentional discrimination
outlawed by the statute”);
id., at 14 (“The words ‘because
of’ plainly connote a causal connection between the housing-related
action and the person’s race or color”).[
4] Thiswas the same position that the United States had
taken in lower courts for years. See,
e.g.,
United
States v.
Birmingham, 538 F. Supp. 819, 827, n. 9
(ED Mich. 1982) (noting positional change), aff’d, 727 F. 2d
560, 565–566 (CA6 1984) (adopting United States’ “concession” that
there must be a “ ‘discriminatory motive’ ”). It is
implausible that the 1988 Congress was aware of certain lower court
decisions but oblivious to the United States’ considered and public
view that those decisions were wrong.
This fact is fatal to any notion that Congress
implicitly ratified disparate impact in 1988. The canon of
interpretation on which the Court and the Solicitor General purport
to rely—the so-called “prior-construction canon”—does not apply
where lawyers cannot “justifiably regard the point as settled” or
when “other sound rules of interpretation” are implicated. A.
Scalia & B. Garner, Reading Law: The Interpretation of Legal
Texts 324, 325 (2012). That was the case here. Especially after the
United States began repudiating disparate impact, no one could have
reasonably thought that the question was settled.
Nor can such a faulty argument be salvaged by
pointing to Congress’ failure in 1988 to enact language that would
have made it clear that the FHA does not authorizedisparate-impact
suits based on zoning decisions. See
ante, at
13–14.[
5] To change the meaning
of language in an already enacted law, Congress must pass a new law
amending that language. See,
e.g., West Virginia Univ.
Hospitals, Inc. v.
Casey, 499 U. S. 83 , and
n. 7 (1991). Intent that finds no expression in a statute is
irrelevant. See,
e.g., New York Telephone Co. v.
New York
State Dept. of Labor, 440 U. S. 519 –545 (1979);
Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 538–540
(1983). Hence, “we walk on quicksand when we try to find in the
absence of corrective legislation a controlling legal principle.”
Helvering v.
Hallock, 309 U. S. 106, 121 (1940)
.
Unsurprisingly, we have rejected
identical arguments about implicit ratification in other
cases. For example, in
Central Bank of Denver, N. A. v.
First Interstate Bank of Denver, N. A., 511 U. S. 164
(1994) , a party argued that §10(b) of the Securities Exchange Act
of 1934 imposes liability on aiders and abettors because “Congress
ha[d] amended the securities laws on various occasions since 1966,
when courts first began to interpret §10(b) to cover aiding and
abetting, but ha[d] done so without providing that aiding and
abetting liability is not available under §10(b).”
Id., at
186. “From that,” a party asked the Court to “infer that these
Congresses, by silence, ha[d] acquiesced in the judicial
interpretation of §10(b).”
Ibid. The Court dismissed this
argument in words that apply almost verbatim here:
“ ‘It does not follow that Congress’
failure to overturn a statutory precedent is reason for this Court
to adhere to it. It is “impossible to assert with any degree of
assurance that congressional failure to act represents” affirmative
congressional approval of the courts’ statutory interpretation.
Congress may legislate, moreover, only through the passage of a
bill which is approved by both Houses and signed by the President.
See U. S. Const., Art. I, §7, cl. 2. Congressional inaction
cannot amend a duly enacted statute.’
Patterson v.
McLean
Credit Union, 491 U. S. 164 , n. 1 (1989) (quoting
Johnson v.
Transportation Agency, Santa Clara Cty.,
480 U. S. 616, 672 (1987) (Scalia, J., dissenting)).”
Ibid. (alterations omitted).
We made the same point again in
Sandoval,
532 U. S. 275 . There it was argued that amendments to Title
VI of the Civil Rights Act of 1964 implicitly ratified lower court
decisions upholding a private right of action. We rejected that
argument out of hand. See
id., at 292–293.
Without explanation, the Court ignores these
cases.
B
The Court contends that the 1988 amendments
provide “convincing confirmation of Congress’ understanding that
disparate-impact liability exists under the FHA” because the three
safe-harbor provisions included in those amendments “would be
superfluous if Congress had assumed that disparate-impact liability
did not exist under the FHA.”
Ante, at 14, 15. As just
explained, however, what matters is what Congress
did, not
what it might have “assumed.” And although the Court characterizes
these provisions as “exemptions,” that characterization is
inaccurate. They make no reference to §804(a) or §805(a) or any
other provision of the FHA; nor do they state that they apply to
conduct that would otherwise be prohibited. Instead, they simply
make clear that certain conduct is not forbidden by the Act.
E.g., 42 U. S. C. §3607(b)(4) (“Nothing in this
subchapter prohibits . . .”). The Court should read these
amendments to mean what they say.
In 1988, policymakers were not of one mind about
disparate-impact housing suits. Some favored the theory and
presumably would have been happy to have it enshrined in the FHA.
See
ante, at 13–14; 134 Cong. Rec. 23711 (1988) (statement
of Sen. Kennedy). Others worried about disparate-impact liability
and recognized that this Court had not decided whether
disparate-impact claims were authorized under the 1968 Act. See H.
R. Rep. No. 100–711, pp. 89–93 (1988). Still others
disapproved of disparate-impact liability and believed that the
1968 Act did not authorize it. That was the view of President
Reagan when he signed the amendments. See Remarks on Signing the
Fair Housing Amendments Act of 1988, 24 Weekly Comp. of Pres. Doc.
1140, 1141 (1988) (explaining that the amendments did “not
represent any congressional or executive branch endorsement of the
notion, expressed in some judicial opinions, that [FHA] violations
may be established by a showing of disparate impact” because the
FHA “speaks only to intentional discrimination”).[
6]
The 1988 safe-harbor provisions have all the
hallmarks of a compromise among these factions. These provisions
neither authorize nor bar disparate-impact claims, but they do
provide additional protection for persons and entities engaging in
certain practices that Congress especially wished to shield. We
“must respect and give effect to these sorts of compromises.”
Ragsdale v.
Wolverine World Wide, Inc., 535
U. S. 81 –94 (2002).
It is not hard to see why such a compromise was
attractive. For Members of Congress who supported disparate impact,
the safe harbors left the favorable lower court decisions in place.
And for those who hoped that this Court would ultimately agree with
the position being urged by the United States, those provisions
were not surplusage. In the Circuits in which disparate-impact FHA
liability had been accepted, the safe-harbor provisions furnished a
measure of interim protection until the question was resolved by
this Court. They also provided partial protection in the event that
this Court ultimately rejected the United States’ argument. Neither
the Court, the principal respondent, nor the Solicitor General has
cited any case in which the canon against surplusage has been
applied in circumstances like these.[
7]
On the contrary, we have previously refused to
interpret enactments like the 1988 safe-harbor provisions in such a
way. Our decision in
O’Gilvie v.
United States, 519
U. S. 79 (1996) —also ignored by the Court today—is
instructive. In that case, the question was whether a provision of
the Internal Revenue Code excluding a recovery for personal injury
from gross income applied to punitive damages. Well after the
critical provision was enacted, Congress adopted an amendment
providing that punitive damages for nonphysical injuries were not
excluded. Pointing to this amendment, a taxpayer argued: “Why
. . . would Congress have enacted this amendment removing
punitive damages (in nonphysical injury cases) unless Congress
believed that, in the amendment’s absence, punitive damages did
fall within the provision’s coverage?”
Id., at 89. This
argument, of course, is precisely the same as the argument made in
this case. To paraphrase
O’Gilvie, the Court today asks: Why
would Congress have enacted the 1988 amendments, providing safe
harbors from three types of disparate-impact claims, unless
Congress believed that, in the amendments’ absence,
disparate-impact claims did fall within the FHA’s coverage?
The Court rejected the argument in
O’Gilvie. “The short answer,” the Court wrote, is that
Congress might have simply wanted to “clarify the matter in respect
to nonphysical injuries” while otherwise “leav[ing] the law where
it found it.”
Ibid. Although other aspects of
O’Gilvie triggered a dissent, see
id., at 94–101
(opinion of Scalia, J.), no one quarreled with this self-evident
piece of the Court’s analysis. Nor was the
O’Gilvie Court
troubled that Congress’ amendment regarding nonphysical injuries
turned out to have been unnecessary because punitive damages for
any injuries were not excluded all along.
The Court saw the flaw in the argument in
O’Gilvie, and the same argument is no better here. It is
true that
O’Gilvie involved a dry question of tax law while
this case involves a controversial civil rights issue. But how we
read statutes should not turn on such distinctions.
In sum, as the principal respondent’s attorney
candidly admitted, the 1988 amendments did not create
disparate-impact liability. See Tr. of Oral Arg. 36 (“[D]id the
things that [Congress] actually did in 1988 expand the coverage of
the Act? MR. DANIEL: No, Justice”).
C
The principal respondent and the Solicitor
General—but not the Court—have one final argument regarding the
text of the FHA. They maintain that even if the FHA does not
unequivocally authorize disparate-impact suits, it is at least
ambiguous enough to permit HUD to adopt that interpretation. Even
if the FHA were ambiguous, how-ever, we do not defer “when there is
reason to suspect that the agency’s interpretation ‘does not
reflect the agency’s fair and considered judgment on the matter in
question.’ ”
Christopher v.
SmithKline Beecham
Corp., 567 U. S. ___, ___ (2012) (slip op., at 10).
Here, 43 years after the FHA was enacted and
nine days after the Court granted certiorari in
Magner (the
“rodent infestation” case), HUD proposed “to prohibit housing
practices with a discriminatory effect, even where there has been
no intent to discriminate.” Implementation of the Fair Housing
Act’s Discriminatory Effects Standard, 76 Fed. Reg. 70921 (2011).
After
Magner settled, the Court called for the views of the
Solicitor General in
Township of Mount Holly v.
Mt. Holly
Gardens Citizens in Action, Inc., 568 U. S. ___ (2012),
another case raising the same question. Before the Solicitor
General filed his brief, however, HUD adopted disparate-impact
regulations. See Implementation of the Fair Housing Act’s
Discriminatory Effects Standard, 78 Fed. Reg. 11460 (2013). The
Solicitor General then urged HUD’s rule as a reason to deny
certiorari. We granted certiorari anyway, 570 U. S. ___
(2013), and shortly thereafter
Mount Holly also unexpectedly
settled. Given this unusual pattern, there is an argument that
deference may be unwarranted. Cf.
Young v.
United Parcel
Service, Inc., 575 U. S. ___, ___ (2015) (slip op., at
16–17) (refusing to defer where “[t]he EEOC promulgated its 2014
guidelines only recently, after this Court had granted certiorari”
(discussing
Skidmore v.
Swift & Co., 323
U. S. 134, 140 (1944) )).[
8]
There is no need to dwell on these
circumstances, however, because deference is inapt for a more
familiar reason: The FHA is not ambiguous. The FHA prohibits only
disparate treatment, not disparate impact. It is a bedrock rule
that an agency can never “rewrite clear statutory terms to suit its
own sense of how the statute should operate.”
Utility Air
Regulatory Group, 573 U. S., at ___ (slip op., at 23).
This rule makes even more sense where the agency’s view would open
up a deeply disruptive avenue of liability that Congress never
contemplated.
IV
Not only does disparate-impact liability run
headlong into the text of the FHA, it also is irreconcilable with
our precedents. The Court’s decision today reads far too much into
Griggs v.
Duke Power Co., 401 U. S. 424 (1971) ,
and far too little into
Smith v.
City of Jackson, 544
U. S. 228 (2005) . In
Smith, the Court explained that
the statutory justification for the decision in
Griggs
depends on language that has no parallel in the FHA. And when the
Smith Court addressed a provision that does have such a
parallel in the FHA, the Court concluded—
unanimously—that it
does not authorize disparate-impact liability. The same result
should apply here.
A
Rather than focusing on the text of the FHA,
much of the Court’s reasoning today turns on
Griggs. In
Griggs, the Court held that black employees who sued their
employer under §703(a)(2) of Title VII of the Civil Rights Act of
1964, 42 U. S. C. §2000e–2(a)(2), could recover without
proving that the employer’s conduct—requiring a high school diploma
or a qualifying grade on a standardized test as a condition for
certain jobs—was motivated by a discriminatory intent. Instead, the
Court held that, unless it was proved that the requirements were
“job re-lated,” the plaintiffs could recover by showing that the
re-quirements “operated to render ineligible a markedly
disproportionate number of Negroes.” 401 U. S., at 429.
Griggs was a case in which an intent to
discriminate might well have been inferred. The company had “openly
discriminated on the basis of race” prior to the date on which the
1964 Civil Rights Act took effect.
Id., at 427. Once that
date arrived, the company imposed new educational requirements for
those wishing to transfer into jobs that were then being performed
by white workers who did not meet those requirements.
Id.,
at 427–428. These new hurdles disproportionately burdened
African-Americans, who had “long received inferior education in
segregated schools.”
Id., at 430. Despite all this, the
lower courts found that the company lacked discriminatory intent.
See
id., at 428. By convention, we do not overturn a finding
of fact accepted by two lower courts, see,
e.g.,
Rogers v.
Lodge, 458 U. S. 613, 623 (1982) ;
Blau v.
Lehman, 368 U. S. 403 –409 (1962);
Graver Tank & Mfg. Co. v.
Linde Air Products Co.,
336 U. S. 271, 275 (1949) , so the Court was confronted with
the question whether Title VII always demands intentional
discrimination.
Although
Griggs involved a question of
statutory interpretation, the body of the Court’s opinion—quite
remarkably—does not even cite the provision of Title VII on which
the plaintiffs’ claims were based. The only reference to §703(a)(2)
of the 1964 Civil Rights Act appears in a single footnote that
reproduces the statutory text but makes no effort to explain how it
encompasses a disparate-impact claim. See 401 U. S., at 426,
n. 1. Instead, the Court based its decision on the “objective”
of Title VII, which the Court described as “achiev[ing] equality of
employment opportunities and remov[ing] barriers that have operated
in the past to favor an identifiable group of white employees over
other employees.”
Id., at 429–430.
That text-free reasoning caused confusion, see,
e.g., Smith, supra, at 261–262 (O’Connor, J., concurring in
judgment), and undoubtedly led to the pattern of Court of Appeals
decisions in FHA cases upon which the majority now relies. Those
lower courts, like the
Griggs Court, often made little
effort to ground their decisions in the statutory text. For
example, in one of the earliest cases in this line,
United
States v.
Black Jack, 508 F. 2d 1179 (CA8 1974),
the heart of the court’s analysis was this: “Just as Congress
requires ‘the removal of artificial, arbitrary, and unnecessary
barriers to employment when the barriers operate invidiously to
discriminate on the basis of racial or other impermissible
classification,’ such barriers must also give way in the field of
housing.”
Id., at 1184 (quoting
Griggs,
supra,
at 430–431; citation omitted).
Unlike these lower courts, however, this Court
has never interpreted
Griggs as imposing a rule that applies
to all antidiscrimination statutes. See,
e.g., Guardians
Assn. v.
Civil Serv. Comm’n of New York City, 463
U. S. 582 , n. 27 (1983) (holding that Title VI, 42
U. S. C. §2000d
et seq., does “not allow
compensatory relief in the absence of proof of discriminatory
intent”);
Sandoval, 532 U. S., at 280 (similar).
Indeed, we have never held that
Griggs even establishes a
rule for all
employment discrimination statutes. In
Teamsters, the Court rejected “the
Griggs rationale”
in evaluating a company’s seniority rules. 431 U. S., at
349–350. And because
Griggs was focused on a particular
problem, the Court had held that its rule does not apply where, as
here, the context is different. In
Los Angeles Dept. of Water
and Power v.
Manhart, 435 U. S. 702 (1978) , for
instance, the Court refused to apply
Griggs to pensions
under the Equal Pay Act of 1963, 29 U. S. C. §206(d) or
Title VII, even if a plan has a “disproportion-ately heavy impact
on male employees.” 435 U. S. at 711, n. 20. We explained
that “[e]ven a completely neutral practice will inevitably have
some disproportionate impact on one group or another.
Griggs does not imply, and this Court has never held, that
discrimination must always be inferred from such consequences.”
Ibid.
B
Although the opinion in
Griggs did not
grapple with the text of the provision at issue, the Court was
finally required to face that task in
Smith, 544 U. S.
228 , which addressed whether the Age Discrimination in Employment
Act of 1967 (ADEA), 29 U. S. C. §621
et seq.,
authorizes disparate-impact suits. The Court considered two
provisions of the ADEA, §§4(a)(1) and 4(a)(2), 29
U. S. C. §§623(a)(1) and (a)(2).
The Court unanimously agreed that the first of
these provisions, §4(a)(1), does not authorize disparate-impact
claims. See 544 U. S., at 236, n. 6 (plurality opinion);
id., at 243 (Scalia, J., concurring in part and concurring
in judgment) (agreeing with the plurality’s reasoning);
id.,
at 249 (O’Connor, J., concurring in judgment) (reasoning that this
provision “obvious[ly]” does not allow disparate-impact
claims).
By contrast, a majority of the Justices found
that the terms of §4(a)(2) either clearly authorize
disparate-impact claims (the position of the plurality) or at least
are ambiguous enough to provide a basis for deferring to such an
interpretation by the Equal Employment Opportunity Commission (the
position of Justice Scalia). See 544 U. S., at 233–240
(plurality opinion);
id., at 243–247 (opinion of Scalia,
J.).
In reaching this conclusion, these Justices
reasoned that §4(a)(2) of the ADEA was modeled on and is virtually
identical to the provision in
Griggs, 42 U. S. C.
§2000e–2(a)(2). Section 4(a)(2) provides as follows:
“It shall be unlawful for an employer—
. . . . .
“(2) to limit, segregate, or classify his
employees in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely
affect his status as an employee, because of such individual’s
age.” 29 U. S. C. §623(a) (emphasis added).
The provision of Title VII at issue in
Griggs says this:
“It shall be an unlawful employment practice
for an employer—
. . . . .
“(2) to limit, segregate, or classify his
employees or applicants for employment in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual’s
race, color, religion,
sex, or national origin.” 42 U. S. C. §2000e–2(a)(2)
(emphasis added).
For purposes here, the only relevant difference
between these provisions is that the ADEA provision refers to “age”
and the Title VII provision refers to “race, color, religion, or
national origin.” Because identical language in two statutes having
similar purposes should generally be presumed to have the same
meaning, the plurality in
Smith, echoed by Justice Scalia,
saw
Griggs as “compelling” support for the conclusion that
§4(a)(2) of the ADEA authorizes disparate-impact claims. 544
U. S., at 233–234 (plurality opinion) (citing
Northcross v.
Board of Ed. of Memphis City Schools,
412 U. S. 427, 428 (1973) (
per curiam)).
When it came to the other ADEA provision
addressed in
Smith, namely, §4(a)(1), the Court unanimously
reached the opposite conclusion. Section 4(a)(1) states:
“It shall be unlawful for an employer—
“(1) to fail or refuse to hire or to discharge
any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges
of employment,
because of such individual’s age.” 29
U. S. C. §623(a)(1) (emphasis added).
The plurality opinion’s reasoning, with which
Justice Scalia agreed, can be summarized as follows. Under
§4(a)(1),
the employer must act because of age, and thus
must have discriminatory intent. See 544 U. S., at 236, n.
6.[
9] Under §4(a)(2), on the
other hand, it is enough if the
employer’s actions
“adversely affect” an individual “because of . . . age.”
29 U. S. C. §623(a).
This analysis of §§4(a)(1) and (a)(2) of the
ADEA confirms that the FHA does not allow disparate-impact claims.
Sections 804(a) and 805(a) of the FHA resemble §4(a)(1) of the
ADEA, which the
Smith Court unanimously agreed does not
encompass disparate-impact liability. Under these provisions of the
FHA, like §4(a)(1) of the ADEA, a defendant must act “because of”
race or one of the other prohibited grounds. That is, it is
unlawful for a person or entity to “[t]o refuse to sell or rent,”
“refuse to negotiate,” “otherwise make unavailable,” etc. for a
forbidden reason. These provisions of the FHA, unlike the Title VII
provision in
Griggs or §4(a)(2) of the ADEA, do not make it
unlawful to take an action that happens to adversely affect a
person because of race, religion, etc.
The
Smith plurality’s analysis, moreover,
also depended on other language, unique to the ADEA, declaring that
“it shall not be unlawful for an employer ‘to take any action
otherwise prohibited . . . where the
differentiation is based on reasonable factors other than
age.’ ” 544 U. S., at 238 (quoting 81Stat. 603; emphasis
added). This “otherwise prohibited” language was key to the
plurality opinion’s reading of the statute because it arguably
suggesteddisparate-impact liability. See 544 U. S., at 238.
This language, moreover, was
essential to Justice Scalia’s
controlling opinion. Without it, Justice Scalia would have agreed
with Justices O’Connor, Kennedy, and Thomas that
nothing in
the ADEA authorizes disparate-impact suits. See
id., at
245–246. In fact, even with this “otherwise prohibited” language,
Justice Scalia merely concluded that §4(a)(2) was
ambiguous—
not that disparate-impacts suits are required.
Id., at 243.
The FHA does not contain any phrase like
“otherwise prohibited.” Such language certainly is nowhere to be
found in §§804(a) and 805(a). And for all the reasons already
explained, the 1988 amendments do not presuppose disparate-impact
liability. To the contrary, legislative enactments declaring only
that certain actions are
not grounds for liability do not
implicitly create a new theory of liability that all other facets
of the statute foreclose.
C
This discussion of our cases refutes any
notion that “[t]ogether,
Griggs holds[[
10]] and the plurality in
Smith instructs
that antidiscrimination laws must be construed to encompass
disparate-impact claims when their text refers to the consequences
of actions and not just to the mindset of actors, and where that
interpretation is consistent with statutory purpose.”
Ante,
at 10. The Court stumbles in concluding that §804(a) of the FHA is
more like §4(a)(2) of the ADEA than §4(a)(1). The operative
language in §4(a)(1) of the ADEA—which, per
Smith, does not
authorize disparate-impact claims—is materially indistinguishable
from the operative language in §804(a) of the FHA.
Even more baffling, neither alone nor in
combination do
Griggs and
Smith support the Court’s
conclusion that §805(a) of the FHA allows disparate-impact suits.
The action forbidden by that provision is “
discriminat[ion]
. . . because of” race, religion, etc. 42
U. S. C. §3605(a) (emphasis added). This is precisely the
formulation used in §4(a)(1) of the ADEA, which prohibits
“
discriminat[ion] . . . because of such
individual’s age,” 29 U. S. C. §623(a)(1) (emphasis
added), and which
Smith holds
does not authorize
disparate-impact claims.
In an effort to explain why §805(a)’s reference
to “discrimination” allows disparate-impact suits, the Court argues
that in
Board of Ed. of City School Dist. of New York v.
Harris, 444 U. S. 130 (1979) , “statutory language
similar to §805(a) [was construed] to include disparate-impact
liability.”
Ante, at 11. In fact, the statutory language in
Harris was quite different. The law there was §706(d)(1)(B)
of the 1972 Emergency School Aid Act, which barred assisting
education agencies that “ ‘had in effect any practice, policy,
or procedure which results in the disproportionate demotion or
dismissal of instructional or other personnel from minority groups
in conjunction with desegregation . . .
or
otherwise engaged in discrimination based upon race, color, or
national origin in the hiring, promotion, or assignment of
employees.’ ” 444 U. S., at 132–133, 142 (emphasis
added).
After stating that the first clause in that
unusual statute referred to a “disparate-impact test,” the
Harris Court concluded that “a similar standard” should
apply to the textually “closely connected” second clause.
Id., at 143. This was so, the Court thought, even though the
second clause, standing alone, may very well have required
discriminatory “intent.”
Id., at 139. The Court explained
that the Act’s “less than careful draftsmanship” regarding the
relationship between the clauses made the “wording of the statute
. . . ambiguous” about teacher assignments, thus forcing
the Court to “look closely at the structure and context of the
statute and to review its legislative history.”
Id., at
138–140. It was the combined force of all those markers that
persuaded the Court that disparate impact applied to the second
clause too.
Harris, in other words, has nothing to do
with §805(a) of the FHA. The “wording” is different; the
“structure” is different; the “context” is different; and the
“legislative history” is different.
Id., at 140. Rather than
digging up a 36-year-old case that Justices of this Court have
cited all of twice, and never once for the proposition offered
today, the Court would do well to recall our many cases explaining
what the phase “because of” means.
V
Not only is the decision of the Court
inconsistent with what the FHA says and our precedents, it will
have unfortunate consequences. Disparate-impact liability has very
different implications in housing and employment cases.
Disparate impact puts housing authorities in a
very difficult position because programs that are designed and
implemented to help the poor can provide the grounds for a
disparate-impact claim. As
Magner shows, when disparate
impact is on the table, even a city’s good-faith attempt to remedy
deplorable housing conditions can be branded “discriminatory.” 619
F. 3d, at 834. Disparate-impact claims thus threaten “a whole
range of tax, welfare, public service, regulatory, and licensing
statutes.”
Washington v.
Davis, 426 U. S. 229,
248 (1976) .
This case illustrates the point. The Texas
Department of Housing and Community Affairs (the Department) has
only so many tax credits to distribute. If it gives credits for
housing in lower income areas, many families—including many
minority families—will obtain better housing. That is a good thing.
But if the Department gives credits for housing in higher income
areas, some of those families will be able to afford to move into
more desirable neighborhoods. That is also a good thing. Either
path, however, might trigger a disparate-impact suit.[
11]
This is not mere speculation. Here, one
respondent has sued the Department for not allocating enough
credits to higher income areas. See Brief for Respondent Inclusive
Communities Project, Inc., 23. But
another respondent argues
that giving credits to wealthy neighborhoods violates “the moral
imperative to improve the substandard and inadequate affordable
housing in many of our inner cities.” Reply Brief for Respondent
Frazier Revitalization Inc. 1. This latter argument has special
force because a city can build more housing where property is least
expensive, thus benefiting more people. In fact, federal law often
favors projects that revitalize low-income communities. See
ante, at 2.
No matter what the Department decides, one of
these respondents will be able to bring a disparate-impact case.
And if the Department opts to compromise by dividing the credits,
both respondents might be able to sue. Congress surely did not mean
to put local governments in such a position.
The Solicitor General’s answer to such problems
is that HUD will come to the rescue. In particular, HUD regulations
provide a defense against disparate-impact liability if a defendant
can show that its actions serve “substantial, legitimate,
nondiscriminatory interests” that “necessar[ily]” cannot be met by
“another practice that has a less discriminatory effect.” 24 CFR
§100.500(b) (2014). (There is, of course, no hint of anything like
this defense in the text of the FHA. But then, there is no hint of
disparate-impact liability in the text of the FHA either.)
The effect of these regulations, not
surprisingly, is to confer enormous discretion on HUD—without
actually solving the problem. What is a “substantial” interest? Is
there a difference between a “legitimate” interest and a
“nondiscriminatory” interest? To what degree must an interest be
met for a practice to be “necessary”? How are parties and courts to
measure “discriminatory effect”?
These questions are not answered by the Court’s
assurance that the FHA’s disparate-impact “analysis ‘is analogous
to the Title VII requirement that an employer’s interest in an
employment practice with a disparate impact be job related.’ ”
Ante, at 4 (quoting 78 Fed. Reg. 11470). See also
ante, at 18 (likening the defense to “the business necessity
standard”). The business-necessity defense is complicated enough in
employment cases; what it means when plopped into the housing
context is anybody’s guess. What is the FHA analogue of “job
related”? Is it “housing related”? But a vast array of municipal
decisions affect property values and thus relate (at least
indirectly) to housing. And what is the FHA analogue of “business
necessity”? “Housing-policy necessity”? What does that mean?
Compounding the problem, the Court proclaims
that “governmental entities . . . must not be prevented
from achieving legitimate objectives, such as ensuring compliance
with health and safety codes.”
Ante, at 21. But what does
the Court mean by a “legitimate” objective? And does the Court mean
to say that there can be no disparate-impact lawsuit if the
objective is “legitimate”? That is certainly not the view of the
Government, which takes the position that a disparate-impact claim
may be brought to challenge actions taken with such worthy
objectives as improving housing in poor neighborhoods and making
financially sound lending decisions. See Brief for United States as
Amicus Curiae 30, n. 7.
Because HUD’s regulations and the Court’s
pronouncements are so “hazy,”
Central Bank, 511 U. S.,
at 188–189, courts—lacking expertise in the field of housing
policy—may inadvertently harm the very people that the FHA is meant
to help. Local governments make countless decisions that may have
some disparate impact related to housing. See
ante, at
19–20. Certainly Congress did not intend to “engage the federal
courts in an endless exercise of second-guessing” local programs.
Canton v.
Harris, 489 U. S. 378, 392 (1989)
.
Even if a city or private entity named in a
disparate-impact suit believes that it is likely to prevail if a
disparate-impact suit is fully litigated, the costs of litigation,
in-cluding the expense of discovery and experts, may “push
cost-conscious defendants to settle even anemic cases.”
Bell
Atlantic Corp. v.
Twombly, 550 U. S. 544, 559
(2007) . Defendants may feel compelled to “abandon substantial
defenses and . . . pay settlements in order to avoid the
expense and risk of going to trial.”
Central Bank, supra, at
189. And parties fearful of disparate-impact claims may let race
drive their decisionmaking in hopes of avoiding litigation
altogether. Cf.
Ricci, 557 U. S., at 563. All the
while, similar dynamics may drive litigation against private
actors.
Ante, at 19.
This is not the Fair Housing Act that Congress
enacted.
VI
Against all of this, the Court offers several
additional counterarguments. None is persuasive.
A
The Court is understandably worried about
pretext. No one thinks that those who harm others because of
pro-tected characteristics should escape liability by conjuring up
neutral excuses. Disparate-treatment liability, however, is attuned
to this difficulty. Disparate impact can be
evidence of
disparate treatment.
E.g., Church of Lukumi Babalu Aye,
Inc. v.
Hialeah, 508 U. S. 520 –542 (1993) (opinion
of Kennedy, J.);
Hunter v.
Underwood, 471 U. S.
222, 233 (1985) . As noted, the facially neutral requirements in
Griggs created a strong inference of discriminatory intent.
Nearly a half century later, federal judges have decades of
experience sniffing out pretext.
B
The Court also stresses that “many of our
Nation’s largest cities—entities that are potential defendants in
disparate-impact suits—have submitted an
amicus brief in
this case supporting disparate-impact liability under the FHA.”
Ante, at 23–24.
This nod to federalism is puzzling. Only a
minority of the States and only a small fraction of the Nation’s
municipalities have urged us to hold that the FHA
allowsdisparate-impact suits. And even if a majority supported the
Court’s position, that would not be a relevant consideration for a
court. In any event, nothing prevents States and local government
from enacting their own fair housing laws, including laws creating
disparate-impact liability. See 42 U. S. C. §3615
(recognizing local authority).
The Court also claims that “[t]he existence of
disparate-impact liability in the substantial majority of the
Courts of Appeals for the last several decades” has not created
“ ‘dire consequences.’ ”
Ante, at 24. But the
Court concedes that disparate impact can be dangerous. See
ante, at 18–22. Compare
Magner, 619 F. 3d, at
833–838 (holding that efforts to prevent violations of the housing
code may violate the FHA), with 114 Cong. Rec. 2528 (1968) (remarks
of Sen. Tydings) (urging enactment of the FHA to help combat
violations of the housing code, including “rat problem[s]”). In the
Court’s words, it is “paradoxical to construe the FHA to impose
onerous costs on actors who encourage revitalizing dilapidated
housing.”
Ante, at 19. Our say-so, however, will not stop
such costly cases from being filed—or from getting past a motion to
dismiss (and so into settlement).
C
At last I come to the “purpose” driving the
Court’s analysis: The desire to eliminate the “vestiges” of
“residential segregation by race.”
Ante, at 5, 23. We agree
that all Americans should be able “to buy decent houses without
discrimination . . .
because of the color of their
skin.” 114 Cong. Rec. 2533 (remarks of Sen. Tydings) (emphasis
added). See 42 U. S. C. §§3604(a), 3605(a) (“because of
race”). But this Court has no license to expand the scope of the
FHA to beyond what Congress enacted.
When interpreting statutes, “ ‘[w]hat the
legislative intention was, can be derived only from the words
. . . used; and we cannot speculate beyond the reasonable
import of these words.’ ”
Nassar, 570 U. S., at
___ (slip op., at 13) (quoting
Gardner v.
Collins, 2
Pet. 58, 93 (1829)). “[I]t frustrates rather than effectuates
legislative intent simplistically to assume that
whatever
furthers the statute’s primary objective must be the law.”
Rodriguez v.
United States, 480 U. S. 522, 526
(1987) (
per curiam). See also,
e.g., Board of
Governors, FRS v.
Dimension Financial Corp., 474
U. S. 361 –374 (1986) (explaining that “ ‘broad
purposes’ ” arguments “ignor[e] the complexity of the problems
Congress is called upon to address”).
Here, privileging purpose over text also creates
constitutional uncertainty. The Court acknowledges the risk that
disparate impact may be used to “perpetuate race-based
considerations rather than move beyond them.”
Ante, at 21.
And it agrees that “racial quotas . . . rais[e] serious
constitutional concerns.”
Ante, at 20. Yet it still reads
the FHA to authorize disparate-impact claims. We should avoid,
rather than invite, such “difficult constitutional questions.”
Ante, at 22. By any measure, the Court today makes a serious
mistake.
* * *
I would interpret the Fair Housing Act as
written and so would reverse the judgment of the Court of
Appeals.